Graham, R. v

A trial judge should give timely notice if, contrary to the parties’ shared understanding, he proposes to leave admissible evidence for the jury’s assessment. Failure to do so may be a material irregularity where counsel has addressed the jury on the expected direction.

Evidence of substantial cash may support an inference of intent to supply drugs only after any innocent explanation has been properly considered. A further direction distinguishing historic from continuing drug dealing is not required where the evidence and the defendant’s case raise no realistic issue that the money derived from a historic transaction. A summing-up need fairly identify each side’s essential case, but need not rehearse every evidential detail. A conviction remains safe where the independent evidence of intent to supply is compelling.

The appellant was convicted at the Inner London Crown Court of possessing ecstasy powder with intent to supply and of simple possession of ecstasy tablets. He received four years’ imprisonment for the first count.

Police found 61 grammes of ecstasy powder divided into bags, scales, plastic bags and more than £3,000 in cash at the appellant’s home. The prosecution also relied on video footage said to show an expensive lifestyle. The appellant maintained that the drugs were for personal use and gave explanations for the money and travel.

On appeal, he alleged an unfair change in the judge’s approach to the video evidence, an inadequate direction about cash evidence, and an insufficient account of his case in the summing-up. The central issue was whether the accepted irregularity rendered the conviction unsafe.

1. Appeal dismissed. The court accepted that there had been a material irregularity concerning the video evidence. Defence counsel had reasonably addressed the jury on the understanding that the evidence would be withdrawn from their consideration after the prosecution did not oppose that course. If the judge intended instead to leave the admissible evidence to the jury, he should have made that clear before closing speeches.

2. The court did not decide whether a judge could properly refuse to direct a jury to disregard relevant and admissible evidence merely because the prosecution had made a concession. It observed that assessment of admissible evidence is ordinarily for the jury. The procedural unfairness lay in the late change of approach without notice to counsel.

3. The cash direction was adequate in the circumstances. Grant, [1996] 1 Cr App R 73, required an innocent explanation for cash to be rejected before the cash could be probative, and referred to money showing ongoing rather than merely past dealing. Here the appellant said that he had acquired the money recently, and there was no evidential basis for treating it as the product of a historic transaction. The judge therefore need not add a separate and artificial direction on whether the appellant was an ex-dealer.

4. The court additionally observed that past drug supply could, under the bad-character provisions of the Criminal Justice Act 2003, be admissible to show propensity. It would often be needlessly complex to distinguish that use from treating cash as evidence of current dealing.

5. A summing-up must identify the issues and each side’s essential case fairly and even-handedly. It need not repeat every evidential detail. Although the video irregularity was material, the quantity and packaging of the drugs, scales, bags and cash provided compelling evidence of intent to supply. The conviction was therefore not unsafe.

• Court of Appeal (Criminal Division) Dismissed the appeal against conviction.
• Inner London Crown Court On 29 September 2006, convicted the appellant of possession of a class A controlled drug with intent to supply and simple possession of a class A controlled drug. On 1 December 2006, imposed four years’ imprisonment for the first count.